from the does-the-President-care? dept

Just last month, we noted that a court in Kentucky had ruled that the Governor of that state was free to block critics on social media accounts, saying that while people are free to speak, the First Amendment does not mean that the Governor has to listen. As we noted at the time, that ruling did not bode well for a more high profile case that was filed by the Knight First Amendment Center at Columbia University against President Donald Trump under similar circumstances. However, as you may have heard, a federal court in New York has now ruled that Trump's blocking is unconstitutional.

This is, not surprisingly, getting lots of attention, but many people commenting on it are not fully understanding the actual issues in the lawsuit (shocking, I know, that people doing legal analysis on the internet might sometimes not get it right...). As we've noted plenty of times in the past, the First Amendment does not apply to private platforms, and nothing in this ruling means that Twitter is a "public forum" (as some nuttier lawyers are trying to argue in other cases). Instead, the ruling is specific that it is just the commentary in response to Donald Trump that has become a public forum.

Though Twitter is a private (though publicly traded) company that
is not government-owned, the President and Scavino nonetheless
exercise control over various aspects of the @realDonaldTrump
account: they control the content of the tweets that are sent from
the account and they hold the ability to prevent, through blocking,
other Twitter users, including the individual plaintiffs here,
from accessing the @realDonaldTrump timeline (while logged into
the blocked account) and from participating in the interactive
space associated with the tweets sent by the @realDonaldTrump
account... Though Twitter also maintains
control over the @realDonaldTrump account (and all other Twitter
accounts), we nonetheless conclude that the extent to which the
President and Scavino can, and do, exercise control over aspects
of the @realDonaldTrump account are sufficient to establish the
government-control element as to the content of the tweets sent by
the @realDonaldTrump account, the timeline compiling those tweets,
and the interactive space associated with each of those tweets.
While their control does not extend to the content of a retweet or
reply when made -- “[n]o other Twitter user can alter the content
of any retweet or reply, either before or after it is posted” and
a user “cannot prescreen tweets, replies, likes, or mentions that
reference their tweets or accounts,” ... -- it nonetheless
extends to controlling who has the power to retweet or reply in
the first instance.

Got that? It's an important nuance. Basically, the court is saying that because the President and his assistant "control" the space in which discussion occurs following his Tweets, that makes it a "designated public forum" and then, because it's the President and he is (duh!) a powerful government official, and government actors are not allowed to stifle protected speech, blocking accounts violates the First Amendment rights of those blocked. First, the court notes that that space in response to Trump's tweets is governmental in nature:

The President and Scavino’s control over the @realDonaldTrump
account is also governmental. The record establishes (1) that the
@realDonaldTrump account is presented as being “registered to
Donald J. Trump, ‘45th President of the United States of America,
Washington, D.C.,’” ... (2) “that the President’s tweets
from @realDonaldTrump . . . are official records that must be
preserved under the Presidential Records Act,” ... see 44
U.S.C. § 2202 (directing the retention of “Presidential records”;
id. § 2201(2) (defining “Presidential records” as those created
“in the course of conducting activities which relate to or have an
effect upon the carrying out of the constitutional, statutory, or
other official or ceremonial duties of the President”); and (3)
that the @realDonaldTrump account has been used in the course of
the appointment of officers (including cabinet secretaries), the
removal of officers, and the conduct of foreign policy, ...
-- all of which are squarely executive functions.... That is, the President presents the
@realDonaldTrump account as being a presidential account as
opposed to a personal account and, more importantly, uses the
account to take actions that can be taken only by the President as
President. Accordingly, we conclude that the control that the
President and Scavino exercise over the account and certain of its
features is governmental in nature.

And thus, blocking is unconstitutional under the First Amendment because blocking people based on what they've said is a content-based restriction on speech:

Here, the individual plaintiffs were indisputably blocked as
a result of viewpoint discrimination. The record establishes that
“[s]hortly after the Individual Plaintiffs posted the tweets . . .
in which they criticized the President or his policies, the
President blocked each of the Individual Plaintiffs,” ...
and defendants do “not contest Plaintiffs’ allegation that the
Individual Plaintiffs were blocked from the President’s Twitter
account because the Individual Plaintiffs posted tweets that
criticized the President or his policies.” ... The
continued exclusion of the individual plaintiffs based on
viewpoint is, therefore, impermissible under the First Amendment.

The court further finds that using Twitter's mute feature, rather than block, would be Constitutional, because that doesn't implicate the others' right to speak in that public forum (though it does stop Trump from seeing those tweets).

Given these differing consequences of muting and blocking, we
find unpersuasive defendants’ contention that a public official’s
muting and blocking are equivalent, and equally constitutional,
means of choosing not to engage with his constituents. Implicit
in this argument is the assumption that a reply to a tweet is
directed only at the user who sent the tweet being replied to.
Were that so, defendants would be correct in that there is no
difference between the inability to send a direct reply (as with
blocking) and the inability to have that direct reply heard by the
sender of the initial tweet being responded to (as with muting).
But this assumption is not supported in the record: a reply is
visible to others, ... and may itself be replied to by
other users.... The audience for a reply extends
more broadly than the sender of the tweet being replied to, and
blocking restricts the ability of a blocked user to speak to that
audience. While the right to speak and the right to be heard may
be functionally identical if the speech is directed at only one
listener, they are not when there is more than one.

In sum, we conclude that the blocking of the individual
plaintiffs as a result of the political views they have expressed
is impermissible under the First Amendment. While we must
recognize, and are sensitive to, the President’s personal First
Amendment rights, he cannot exercise those rights in a way that
infringes the corresponding First Amendment rights of those who
have criticized him.

There is one odd bit that is not mentioned in most of the commentary on this ruling. And it's this: the court does not actually order Trump to stop blocking people. It just says that it's unconstitutional. Given the choice between giving the Knight Center injunctive relief (i.e., forcing the defendant to comply) and merely declaratory relief (i.e., telling the plaintiff they are correct), it chose the latter. It notes that there is some question of whether or not the courts can impose injunctive relief on a sitting President, and decides to side-step the question altogether.

While we find entirely unpersuasive the
Government’s parade of horribles regarding the judicial
interference in executive affairs presented by an injunction
directing the President to comply with constitutional
restrictions, we nonetheless recognize that “[a]s a matter of
comity, courts should normally direct legal process to a lower
Executive official even though the effect of the process is to
restrain or compel the President.”

It does note that it could award injunctive relief against the guy who helps manage the Twitter account, Dan Scavino, but chooses not to. In effect, the court says that by granting declaratory relief and merely saying that this activity violates the First Amendment, that should be enough to convince Scavino and Trump to stop blocking:

Accordingly, though we conclude that injunctive relief may be
awarded in this case -- at minimum, against Scavino -- we decline
to do so at this time because declaratory relief is likely to
achieve the same purpose. The Supreme Court has directed that we
should “assume it is substantially likely that the President and
other executive . . . officials would abide by an authoritative
interpretation of [a] . . . constitutional provision,”... (“Were this court
to issue the requested declaration, we must assume that it is
substantially likely that [government officials] . . . would abide
by our authoritative determination.”), and there is simply no
reason to depart from this assumption at this time.

Given this particular administration, that seems like a mighty big assumption. The White House has, at the very least, already suggested it will appeal this ruling, so the issue of declaratory v. injunctive relief may not really be all that important or get much attention, but it does seem noteworthy that the court seems to say it doesn't need to order the President to do anything since it expects him to respect its ruling. Some people might fight that assumption somewhat laughable.

Meanwhile, this President, who has at multiple times claimed to be a huge First Amendment supporter, has lost a First Amendment case for stomping on the rights of some of the citizens of the country whose government he runs.

from the pay-to-be-hacked dept

Look, when it comes to Comcast, it's obviously quite easy to slap the company around for any number of its anti-consumer practices. Just sampling from the most recent news, Comcast was sued over its opt-out mobile hotspot from your home router plan, the company has decided to combat cord-cutting by hiking prices and fees on equipment for customers who cord-cut cable television, and it also has put in place a similar plan to charge all kinds of bullshit fees on equipment installations for customers who aren't bundling in other services with its ISP offering. You should be noticing a trend in there that has to do with how Comcast handles so-called "equipment rental" fees for its broadband customers and how it handles customers that choose to bring their own device to their home networks instead. Comcast has always hated customers that use their own WiFi routers, as the fees for renting a wireless access point represent a huge part of Comcast's revenue.

Which is why you would think that the company would at least not expose the home networks of customers who use that equipment. Sadly, it seems that Comcast's website made the network SSIDs and passwords available in plain text of customers who were renting router equipment, while those that used their own routers were completely safe.

A security hole in a Comcast service-activation website allowed anyone to obtain a customer's Wi-Fi network name and password by entering the customer's account number and a partial street address, ZDNet reported yesterday.

The problem would have let attackers "rename Wi-Fi network names and passwords, temporarily locking users out" of their home networks, ZDNet wrote. Obviously, an attacker could also use a Wi-Fi network name and password to log into an unsuspecting Comcast customer's home network.

It should be noted that Comcast almost immediately addressed the security flaw in its website after ZDNet's report. Still, we're not in the business of giving high marks to a company that fixes a laughable security hole on its website. Comcast reps also claimed that "There's nothing more important than our customers' security." But, if that were true, Comcast's position would be to advocate its customers use their own routers rather than renting Comcast routers, as those who did so were completely protected from this security risk.

Just to be clear, we're talking about really sensitive information exposed by this website flaw. WiFi network names and passwords are one thing, but malicious actors were also presented with the routers' physical home addresses, despite the attacker not needing a customer's full home address in order to access that information. And all of this was presented in plain text.

Any company making these kinds of dangerous mistakes would be bad, but it's worth putting all of this in the context of Comcast both operating in a competition-deprived unregulated ISP market and that it is trying to get even bigger through major acquisitions to gobble up even more market-share. That kind of attempt at ISP monoculture makes any security flaw exponentially worse and Comcast has not demonstrated its ability to live up to the security task.

from the good-deals-on-cool-stuff dept

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Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

from the bad-press-happens,-attacking-the-media-doesn't-help dept

Hey Elon,

Let's start this off by noting I'm generally a big fan of what you've done over the years with your various companies (Zip2 always seemed a bit silly, but, you know, since then...). Just recently I got a tour of the Tesla factory and I felt like Charlie in the Chocolate Factory, even if I didn't get to own the factory when it was over. I've also been impressed by the way you decide to seriously "just get it done" when you see something that should be done. I mean, half the world seemed to think your idea for the Boring Company was actually a joke and yet a year and a half later, you've got a freaking tunnel under LA (in contrast, the 2nd Avenue Subway in NY was proposed in 1919 and just opened partially last year). So, like, I take it seriously when you say you've got a new project underway.

And, yesterday you went on a bit of a Twitter rant about the media and said that you were going to start a media truth rating site called Pravda (clever!). And, as with the Boring Company, I believe you'll do it. I mean, you actually did incorporate Pravda Corp. last fall. So, you've got that going for you.

That said, I have some pretty serious concerns about this whole setup and believe you've misdiagnosed the problem. Let's start with your tweet that suggests the reason reporters get stories wrong is because they're incentivized by clicks and ad dollars:

I'm curious if you could point to any actual example of that happening in practice today for a mainstream publication? I know that Gawker -- who your former colleague Peter Thiel killed off -- used to pay writers a bonus based on clicks, but I can't think of any other news organization that still does that. It's a nice story that people outside the media like to claim, but actual journalists know is not actually the case. Hell, here at Techdirt, I've never actually told any of our writers how much traffic their stories get, because I don't want them thinking about clicks at all. I want them to write the best stories they can write, and then they can let me focus on how to monetize good content and a good insightful community, rather than just going for scale and clicks.

And, as for the whole "fossil fuel companies as advertisers" bit, it may be true that there are some publishers out there who do worry about offending their advertisers, but I've almost never seen that information conveyed to the journalists themselves, and in the rare cases where that does happen, lots of journalists would (and do) quit rather than feel that their reporting was compromised by advertisers. So, blaming "clicks" and "advertisers" for more sensational stories you don't like is -- dare I say it -- "fake news" (in the parlance of our times, even if that's a dumb and meaningless phrase). It's good to correct the record when the press gets something wrong, but imputing incorrect motives to the reason for the coverage has serious consequences that you really might want to think about.

The reason Tesla gets lots of coverage, both good and bad, is because it's a fucking fascinating company. You've built (1) the first successful new American car company in like a century and (2) done it with an important advancement in technology (electric cars) that have failed in the past. It's a fascinating story. And, as tech comms guy Aaron Zamost pointed out years ago, there's a predictable cycle of "Silicon Valley Time" in how all successful companies tend to get covered -- for good or for bad. For what it's worth, it looks like you're somewhere in the 9 to 10 o'clock hour on Zamost's clock (which actually means you're not that far off from hitting 12 o'clock and getting to start the cycle again.)

But, let's get back to this whole Pravda (again, clever name!) idea (or is it called "You're Right!" now?). I know it feels like you're striking back against some recent bad media coverage. But, honestly, you're really just serving to call more attention to some of the negative stories about Tesla out there right now (including an eye-opening story from the Center for Investigative Reporting, a non-profit not exactly known for clickbait or making decisions based on its non-existent advertisers). Of course, you've done this before as well. I wrote about it five years ago, when another instance of you lashing out at the media only seemed to call more attention to those negative stories.

But, there is a larger, more important issue here that should be discussed. I know you've dismissed a few people who have suggested your anti-media rant does more harm than good, but you might want to rethink that stance. Yes, the media makes mistakes. Sometimes those mistakes are pretty serious. And, yes, some media organization are just... terrible. But painting the entire media industry with a broad brush, at the same time that many other powerful institutions who don't want to be held accountable (*cough* *cough*) are doing the same thing, doesn't help make the media better or more credible. It just empowers those who seek to discredit the actually good and necessary job of underpaid, overworked reporters who are actually breaking important stories, holding the powerful accountable and speaking truth to power.

Indeed, if you've actually read this far (and I know that's unlikely, but humor me), I would recommend seriously considering the four questions that Alexios Mantzarlis at the Poynter Institute (again, a non-profit known for supporting serious, thoughtful journalism) had for you about this plan -- which really lays out all the ways in which your plan can go wrong. Crowdsourcing has lots of benefits. But crowdsourcing "truth" tends to turn into a popularity contest of narratives. And, as we've seen, sometimes that leads to some pretty fucked up outcomes.

And you don't need to encourage that kind of thing just because a few journalists pissed you off. You're crazy rich and super powerful. The journalists you are maligning tend to be neither of those things. And your plan looks likely to make things not just worse for them, but to make their jobs in actually bringing about truth that much more difficult.

I might not know how to build a cool factory like the Tesla factory or be able to launch my sports cars into space, but I do know something about the media world. And your little tirade and plans to "fix" things, are based on faulty assumptions and will make a difficult situation for the media much worse -- doing pretty serious damage to the good work that much of the media actually does. I have no problem with calling out bad reporting, weak fact checking, silly assumptions and the like. You've got a powerful soapbox and you should use it accordingly. But, tarring and feathering the entire media and providing tools for everyone else to do the same is going to lead to really bad outcomes.

So, please, focus on continuing to do the impossible with your various companies rather than attacking the media. The Silicon Valley clock will keep ticking, and it'll be 12 o'clock before you know it. Hopefully, by then, there may even be some Teslas that those of us working in media can actually afford.

from the here's-the-thing-you-didn't-ask-for-but-will-probably-enjoy-reading dept

Once you release a document to a public records requesters, it's a public record, whether you meant to release it or not. The person handling FOIA requests for the Washington State Fusion Center (a DHS/local law enforcement collaboration known more for its failures than successes) sent Curtis Waltman something unexpected back in April. Waltman asked the Fusion Center for records pertaining to Antifa and white supremacy groups. He did get those records. But he also got something titled "EM effects on human body.zip."

The files did not appear to have been generated by any government agency, but rather collected from other sources who thought there might be some way the government could control minds using electronic stimulation or "remote brain mapping." Why the Fusion Center had them on hand remains a mystery, as does their attachment to a FOIA request containing nothing about electronic mind manipulation.

This inadvertent disclosure has led to more requests for the same documents. Only this time, requesters -- like Joshua Eaton of ThinkProgress -- are asking specifically for government mind control files. It appears the Fusion Center first thought about withholding some mind control docs, but somewhere along the line decided it couldn't pretend the documents that weren't supposed to be released hadn't actually been released.

An email chain in the release [PDF] to Eaton contains an apology from the staffer who accidentally sent Waltman the mind control files.

Good afternoon Gretchen,

First of all I want to apologize the same way I apologize with my supervisor Lt Boyle and [redacted] I do not like to give excuses but I really sent this without intention when it was not responsive. I sent the original email to [redacted] with the attachments. I will try not make more mistakes…. Now, because of my error MuckRock sent another PDR. Sorry again for the situation and have great afternoon…

Gretchen (the Public Records Officer for the Washington State Police) tells the staffer not to worry about it. Apparently, sending the wrong files to requesters happens frequently, but otherwise, everyone is doing a great job, including the person who sent mind control files with a batch of extremist docs.

But that apology and forgiveness is preceded by the same staffer asking for another review of documents she already released to another requester, possibly in hopes of denying this release.

Erik,

[redacted] told me if you could review this. Mudrock is claiming that DHS did created this. I think I was not supposed to release this but it was public.

Can you help me what can I tell my Public Disclosure coordinator?

Sorry for the inconvenience

No response from Erik is included in the document so one assumes the release went ahead without his additional input. Now this requester has a copy of this email chain, something pulled from an internet "mind control forum," and, inexplicably, the KKK documents released to Waltman in response to his FOIA request.

So, if you're looking to obtain public records but don't particularly care what records you receive, it appears the Washington State Fusion Center is a great place to try your luck.

While this is all being portrayed as "regulatory modernization" by ISPs and their armies of consultants and allies, former FCC Boss Tom Wheeler has gone so far as to call the effort a "fraud." Wheeler was quick to note that not only does the FTC lack rule-making authority, it can only act against an ISP if it can be very clearly shown that the ISP's actions were "unfair or deceptive." That's tricky to do in the net neutrality era where anti-competitive behavior is often disguised as "reasonable network management."

The ISP narrative being parroted about is that the FTC is somehow better suited to police net neutrality than an FCC custom-built by Congress for the purpose. But that's patently false, and as Wheeler noted in an interview last year, ISPs know that shifting oversight authority from the FCC to FTC will leave ISPs lost in the regulatory wash (which is the entire purpose of their gambit):

"In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). “Modernizing” the FCC is the lingo being used. What’s your thought about that?

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.

Wheeler's warning was ignored and as of June 11 (net neutrality's formal death date, for now), this is the agency that's going to be tasked with holding AT&T, Comcast, Charter and Verizon accountable to the public. Meanwhile Andrew M. Smith, the man being appointed to head the FTC consumer protection division tasked with enforcing what's left of net neutrality (read: nothing) isn't exactly instilling confidence:

"The new director of the Federal Trade Commission’s consumer protection unit, a watchdog with broad investigative powers over private companies, stands out even in an administration prone to turning over regulatory authority to pro-industry players...in 2012, Mr. Smith was also part of the legal team that defended AMG Services, the payday lender founded by the convicted racketeer Scott Tucker, whose predatory practices against impoverished borrowers eventually led to a $1.3 billion court-ordered settlement, the biggest in the commission’s history.

“It’s outrageous the F.T.C. would pick the lawyer for a criminally convicted racketeer’s payday loan company as consumer protection chief,” said Senator Elizabeth Warren, Democrat of Massachusetts, who opposed Mr. Smith’s selection. “The agency should pick someone with a track record of protecting consumers, not companies that cheat people."

And while it's true that a lawyer isn't defined by who he or she represents, it also remains pretty clear that Smith has zero experience protecting consumers or startups, making him a dubious selection for the job. And given his laundry list of past employment for companies ranging from Uber and Equifax (who he defended during their recent privacy kerfuffle), he's going to have to recuse himself from a long list of decisions at the FTC, which also doesn't make him a particularly compelling hire.

It shouldn't take a doctoral degree to understand how this massive regulatory paradigm shift ends badly for consumers, startups, and the health of the internet. And this is all before you realize that AT&T is currently in court trying to argue that the FTC has no authority over monopoly ISPs whatsoever, something ISPs (and their list of pay to play allies) just kind of conveniently omit when talking about how the FTC is perfectly suited to help protect the open internet and the would-be competitors of tomorrow.

from the quite-possible-The-Man-will-survive-this-sticking-to dept

In the months following the appearance of the Snowden leaks, several state legislatures attempted stiff arm snooping feds by introducing bills prohibiting collect-it-all programs from being deployed against Americans by the NSA. Most targeted the NSA's warrantless collection of metadata, creating a warrant requirement for the collection of data within the state's borders.

Others were a bit more creative, forbidding state law enforcement from participating in federal surveillance efforts or, in the case of Utah, where a new NSA data center was being built, forbidding the state's water supply from being used in data collection efforts (to cool the agency's many, many servers).

Former National Security Agency contractor Edward Snowden marks five years in exile next month. And 11 days after the anniversary of his initial public surveillance disclosure, the first state will implement a law that arguably cuts the NSA off from local water and electricity.

There isn't a known NSA facility in Michigan, but the law's author says it sends a clear message with a ban on state and local officials, including law enforcement and public utilities, cooperating with federal agencies that allegedly collect personal data without legal process.

"It hangs up a sign on Michigan's door saying, 'No violation of the Fourth Amendment, look elsewhere'," said state Rep. Martin Howrylak, a Republican. "Democrats as well as Republicans would certainly stand very strong in our position on what this law means."

Michigan's Fourth Amendment Rights Protection Act takes effect June 17 after passing with a single "no" vote in the legislature.

The bill was originally introduced last spring, but received wholehearted support for both sides of the state legislature, passing unanimously in the Senate and receiving only a single "no" vote in the House. The bill received the governor's signature in March.

Since there are no known collections operating out of Michigan at this time, the law has limited utility. It will mostly serve as a deterrent, suggesting the NSA and others look elsewhere for real estate when opening new data centers. It could also serve to block metadata collections from telco providers located in the state, but those targeted by the NSA are headquartered elsewhere, beyond the reach of this law.

The wording of the law suggests it won't do much to prevent federal surveillance activities. Even though it does mention the use of warrants, it does not actually make them a requirement.

This state or a political subdivision of this state shall not assist, participate with, or provide material support or resources to a federal agency to enable it to collect or to facilitate in the collection or use of a person's electronic data or metadata, unless 1 or more of the following circumstances apply:

(a) The person has given informed consent.

(b) The action is pursuant to a warrant that is based upon probable cause and particularly describes the person, place, or thing to be searched or seized.

(c) The action is in accordance with a legally recognized exception to warrant requirements.

(d) The action will not infringe on any reasonable expectation of privacy the person may have.

(e) This state or a political subdivision of this state collected the electronic data or metadata legally.

The language doesn't suggest the surveillance exposed by the first Snowden leak (cellphone metadata) would be affected, even with the new law in place. The "expectation of privacy" surrounding third party records -- which almost all metadata is -- is nonexistent. There is some judicial discussion about cell site location info currently underway, but call data -- like that exposed by the first Snowden leak -- is still considered a third party record, something federal agencies can collect without a warrant and without troubling a "reasonable expectation of privacy."

At best, the law would encourage local agencies to check with their legal teams before pursuing partnerships with federal agencies. It may also result in the use of warrants in cases where warrants aren't usually thought to be needed. It's more of a symbolic victory against federal incursion than a solid protector of residents' Fourth Amendment rights. It may limit federal surveillance in the state simply because it makes local cooperation merely a possibility, rather than a foregone conclusion.

It may not be the best anti-surveillance bill, but it does at least show anti-mass surveillance sentiment still lives and breathes in some local legislatures five years after the Snowden leaks made their debut.

from the even-if-it's-become-sadly-expected dept

The Obama administration was terrible when it came to how it treated journalists, acting vindictively against many journalists, and opening up investigations that created massive chilling effects on journalism. While some supporters of our previous President insisted that these actions were necessary due to the journalists "leaking" or revealing sensitive information, that's a ridiculous claim. A journalist's job is to report on things, including revealing the kind of information a government would prefer be kept secret. And, more importantly, normalizing a government at war with the journalists who cover it was bound to be abused even more going forward.

And that brings us to the current administration, whose attacks on journalists have been frequent as well, though of a different, more clumsy nature. While the last administration focused on keeping secrets and launching chilling investigations, this one seems focused on name calling and hamfisted attempts at shutting out the media in the most obvious and petty of ways. Neither approach is good, but the current administration's attacks on journalists are so blatant and so stupid, it just makes people wonder what they're so afraid of.

While most people think mainly about the President's comments about the media, the EPA's attitude towards the media may be even more instructive. Just a few weeks ago, NY Times reporter Eric Lipton, in an interview with NPR's Terry Gross, explained how the EPA sought to shut out the media:

Well, this has been something that's been apparent to reporters that cover the EPA for a year now where every Friday or so we send in a request to the Agency to ask them what's up this week, where is the administrator going? And, you know, therefore can we be there essentially to observe his activity as he travels around the United States, in some cases around the world? It's part of our job to cover that. They never tell us where he's going.

And, you know, every Friday we send in this email to say, you know, we're trying to do our jobs to cover the Agency. What they do is they take their trips. They require that the participants that are, you know, part of the various events that they're going to have not tell any reporters unless they selectively pick a reporter they think is going to give them good treatment. And the only time that we become aware of it is when Scott Pruitt or his staff sends out tweets, and then they issue a press release with photos taken from the staff. So honestly, it's a bit like propaganda as opposed to actual events that the public has access to.

Later in the interview, Lipton shares another story of how EPA boss Scott Pruitt almost ended up at an event where open questions would be asked -- after the organizer of the event declared that it was a town hall-style event with questions, and the EPA not only flipped out and said no Q&A would be allowed, but sent that organizer a list of "allowed" questions that included hard hitting journalistic inquiries like "What has it been like to work with President Trump?"

So it should come as little surprise that on Tuesday, at an event where Pruitt was scheduled to speak, the EPA decided to just keep a bunch of reporters out. Specifically, reporters from the Associated Press, CNN, and an environmental publication called E&E News. In the case of the AP reporter, Ellen Knickmeyer, security allegedly "grabbed [her] by the shoulders and shoved [her] out of" the EPA building.

“The leadership summit quickly reached capacity with a wide variety of stakeholders including representatives from over 40 states, territories, and tribes,” Wilcox said in a prepared statement.

And that sounds like a valid excuse until you hear that there were "dozens of empty seats in the room" according to reporters who were there (mentioned in the same link above).

The EPA also tried to blame the AP reporter for security grabbing her and removing her from the building, but later had to change its false statement claiming that she had tried to shove her way in, which does not appear to be true.

After security told her that “we can make you get out,” Knickmeyer said she took out her phone to record what was happening. Some of the security guards reached for it, and a woman grabbed her shoulders from behind and pushed her about five feet out the door.

Wilcox issued a statement late Tuesday saying Knickmeyer “pushed through the security entrance.” After the AP objected to the characterization, the spokesman issued a second statement removing that account and instead saying Knickmeyer “showed up at EPA but refused to leave the building after being asked to do so.”

Separately, the argument that this was a space issue is undermined by a report that the EPA had a list of which reporters were to be blocked. According to CNN:

A CNN photographer was screened by security guards before the event and was waiting for an escort or further information. Wilcox arrived soon after and provided security with a list of news outlets and reporters, instructing them not to let anyone not on the list into the event. The CNN photographer then asked if he could enter the event and was told by security he couldn't.

This is a really bad look for an agency that already is looking pretty dismal. The fact that some press was let in and others weren't -- and that phony excuses were used multiple times in multiple ways -- suggests an agency that wants to be vindictive against coverage it doesn't like. These kinds of attacks on the press may be different in nature than those of the previous administration, but it does show how the general attacks on the press by any administration are shameful attempts to avoid being held accountable. While the strategies may be different, the end effect is a much weaker and less well-informed society. That should be seen as a serious problem.

from the using-poor-inferences-to-unconstitutionally-prevent-other-poor-inferences dept

Earlier this month Ars Technica reported on the arrest of the alleged operators of Mugshots.com, a website that does what it says on the tin: hosts mugshots. The issue is, the site operators didn't just host mugshots; they also charged people to have their mugshots removed from the site through a companion site, Unpublisharrest.com.

Assuming the arrest warrant is fairly stating things, the site's operators may not have had the best of intentions in running their site the way they did. According to the facts alleged they were more interested in making money by charging people to have their pictures removed from their site than in serving as any sort of public records archive.

But it shouldn't matter why they pursued the editorial policy that they did. First of all, mugshots are generally public records, and for good reason. As South Dakota's attorney general Mark Jackley noted last year, when South Dakota declared them to be public records:

"The release of criminal booking photographs to the public will result in greater transparency in the criminal process, enhance public safety, and will further assist the media and the public in the proper identification of individuals in the criminal process."

People are ordinarily allowed to share public records on their websites, just as they may share any other lawful information. People are also free to be arbitrary and capricious in how they choose what information to share. They are even free to be financially motivated in making those decisions.

But according to authorities in California, if the decision on what information to share is linked to a profit incentive (from the arrest warrant: "The motive behind posting the damaging material is financial gain."), and that information is a mugshot, you go to jail. In the case of the Mugshots.com operators, authorities have predicated their arrest on some alarming statutory language:

As of January 1, 2015, California Civil Code Section 1798.91 .1, Subdivision makes it unlawful for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. By posting the booking photograph online, and requiring a fee to have it removed, the owners and operators of Mugshots.com and Unpublisharrest.com are operating their websites for an unlawful purpose.

In addition, the authorities construed what the operators of Mugshots.com did as identity theft:

California Penal Code Section 530.5 defines identify theft, stating: "Every person who willfully obtains personal identifying information . . . of another person, and uses that information for any unlawful purpose. . . without the consent of that person, is guilty of a public offense. Section 530.55 identifies a 'person' as a natural person, firm, company, corporation or any other legal entity. The section defines 'personal identifying information' as any 'name, address . . . or other unique physical representation.' Because Mugshots.com and Unpublisharrest.com have used, and continue to use, the booking photographs and PII of individuals for purposes of selling the service of removing the photographs and information, the owners are in violation of California Penal Code Section 530.5, identity theft, a felony."

Taken together, the arrest warrant concludes, the site operators are guilty of extortion and conspiracy to commit extortion. But to prove extortion prosecutors must show that the accused threatened a victim either with violence, the accusation of a crime, or the exposure of a secret, if they didn't pay the accused. Yet the defendants are accused of none of these things. Not only is there no issue of threatened violence, but what the site operators are alleged to have done in no way involves revealing a secret or accusing another of a crime. Instead it is the state that has already accused the site operators' purported "victims" of a crime, and its having done so is no secret. The state's accusation against these people became public when it originally released the mugshots, meaning there is nothing that the site operators could have been threatening to reveal that wasn't already revealed.

This apparently sloppy reading of the extortion statute, compounded with the 2015 statutory language giving mugshots a sort of magical status that prevents them from being treated as an ordinary public record, represents a chilling incursion on protected First Amendment activity. It's one thing to impose liability for publishing content that isn't lawful, perhaps because it's defamatory, infringing, or somehow intrinsically wrongful unto itself. But it's another thing entirely to impose liability for publishing content that is entirely lawful – especially, as in this case, when it is not only lawful but a public record.

California authorities would likely argue that the prosecution is not about liability for speech, but liability arising from the decisions about what speech got spoken. (Or, more particular to this case, remained spoken, for the state is not prosecuting the site operators for having posted the mugshots in the first place.) But this is a distinction without a difference. Indeed, decisions about what we choose to say can be as expressive as anything we actually do say. The government ordinarily does not get to come in and force us to make those decisions in any particular way. Freedom of expression means that we are at liberty to decide what to say, and then what not to say, for whatever reason we might decide. Even when these expressive choices are guided by a profit motive.

Were that not the case, think of how chilling it would be to profit-driven news media if their editorial decisions had to be free from any financial concern in order to retain First Amendment protection. Even in terms of mugshots themselves, think about how chilling it would be if others could not freely use them to tell us about the world around us, if there was money to be made in the process. As case in point, the very same week the arrest warrant was used to extradite the site operators back to California, the New York Times ran a story about the efforts of journalist and photographer Eric Etheridge to document the lives of Freedom Riders.

Among the important artifacts of this historic campaign are more than 300 mug shots taken of the Freedom Riders in Jackson, now the subject of “Breach of Peace: Portraits of the 1961 Mississippi Freedom Riders” (Vanderbilt University Press). In it, the journalist and photographer Eric Etheridge provides visual and oral histories of these courageous men and women, juxtaposing vintage mug shots with short biographies, interviews and contemporary portraits. Originally published in 2008, this expanded edition, with updated profiles and additional portraits…

It is a book that is for sale, so it would seem there is a profit motive somewhere. But consider whether this important historical work could be released if authorities in California – or, perhaps more saliently, in Mississippi, where the mugshots are from – could scrutinize the expressive decisions that went into the book's use of the pictures because it profited from that use.

Yet that's what the California authorities have decided they are entitled to do with the Mugshots.com site. The arrest warrant is dismissive towards the free speech interests of the site's operators, accusing them of "using freedom of speech theories in justifying the activity." Of course, that's what the First Amendment is for, to protect expressive activities that authorities do not like. And authorities really don't like what happened here.

As noted above, the optics in this case are not great. People felt desperate to have their mugshots removed from the Internet, and the site operators profited from that desperation. It feels criminal, but just because they may have had nefarious intent does not mean that they committed a crime. Just reading about the arrest brought to mind the Monty Python sketch where a bunch of gangsters connived a devious plot to go to a jeweler's to obtain an expensive watch - that they paid for.

Sure, it looks like they are up to no good, but to determine whether a crime has been committed we can't just consider how it looks. We have to look closely at the underlying lawfulness of the activity, not the optics surrounding it, and for the very same reason that California authorities are now interested in policing the use of mugshots: to prevent unwarranted inferences of criminal culpability. As the New York Times wrote about the Freedom Riders book:

If these mug shots inadvertently captured the humanity and special qualities of their principled subjects, as Mr. Etheridge observed, their intention was nefarious: to publicly impugn and humiliate people whose only crime was to advocate equality through peaceful protest. No matter their purpose, mug shots inevitably imply aberrance or delinquency, whether or not the people they depict are eventually found to be guilty.

But that's what the California prosecutors have done: impute "aberrance or delinquency" to draw unwarranted inferences about criminal culpability from an act that the law cannot constitutionally criminalize. This inference has already been used to strip the site operators of their constitutional right to express themselves anonymously due to at least three search warrants that were served on their service providers. These warrants were issued upon probable cause, but the only probable cause that can be construed here is that the site operators engaged in expressive activity authorities did not like. Efforts by these authorities to now extradite, further prosecute, and potentially leave the site operators vulnerable to civil damages should not be cheered by anyone who might prefer not to experience the same as a result of their own lawful expression.

from the it's-not-just-him-unfortunately dept

Attorney General Jeff Sessions is an old-school law and order man. He wants asset forfeiture returned to its former glory -- no longer questioned by all and sundry for its ability to enrich law enforcement agencies without making much of a dent in criminal activity. He wants drug sellers jailed for as long as possible, suggesting the last time he read a policy paper was sometime during the mid-1980s. And he thinks people questioning law enforcement efforts should be ashamed of themselves, what with the dangers faced occasionally by officers whose workplace can't even crack the Top 10 Deadliest Jobs in America list.

Sessions goes where he's wanted when he speaks, ensuring he'll receive applause and accolades, rather than a bunch of "wtfs?" when he delivers bullshit like this:

I believe one of my highest duties is to call attention to your successes, and to encourage our fellow citizens to support you in your difficult and dangerous work.

But what has made times difficult recently for law enforcement is that—by the end of the previous administration—many of you came to believe that some of the political leadership of this country had abandoned you. Some radicals and politicians began to unfairly malign and blame police as a whole for the crimes and unacceptable deeds of a few. Amazing— their message seemed to be that the police were the problem, not the criminals. They wanted the ACLU to determine police policies, and that was enforced by a federal court order. They said police were violent while homicides in America increased by a total of 20% in 2015 and 2016, the largest jump since 1968. Law Professor Paul Cassell and economics Professor Richard Fowles established that in Chicago, homicide jumped 58% after the ACLU settlement ended proven and constitutional policing.

This was delivered to the National Association of Police Organizations -- a union of police unions -- so there was no one present to question the veracity of this statement, nor push back against its loaded, implicit assertions. No one would expect any more (or any less!) of an organization of organizations which are largely responsible for the general state of disrepair that passes for policing these days.

Law enforcement has never been abandoned. Even when the criticism rains down from the federal government, it's always hedged with phrases implying the problem is a few officers, rather than the culture itself. If all it takes is an incremental increase in accountability to make officers feel "abandoned," they're far too sensitive to be holding positions of public power.

Second, Sessions shows he doesn't care about police misconduct or public accountability by maligning those who demand accountability as "radicals." This suggests Sessions is more interested in a docile nation than upholding his duties as Attorney General, which (used to) include investigating and prosecuting officers who abuse their power.

Finally, his portrayal of the rise in violence in Chicago as the direct result of a consent decree is both dishonest and ugly. The consent decree dealt with the Chicago PD's stop-and-frisk tactics. The PD agreed to revamp its policies after a 2015 report by the ACLU found the program disproportionately targeted black residents. In other words, Sessions is claiming requiring cops to behave Constitutionally results in increased criminal activity.

That would be bad enough on its own, but there's not one single thing Sessions can point at to back up this claim -- not even the report itself. Correlation isn't causation and there's ample evidence a consent decree that requires Constitutional policing does not lead to increased crime. We have apples-to-apples comparisons that disprove this ridiculous theory.

Philadelphia has been working under a settlement agreement on stop-and-frisk practices like Chicago’s since 2011, and its homicide rate fell for several years afterward before rising again in 2016 and 2017 (albeit at much lower rates than in Chicago).

In Newark, N.J., a consent decree imposing requirements for stop-and-frisk practices, among other provisions, was adopted in 2016. The city reported 72 homicides in 2017, a 25 percent drop, although nonfatal shootings increased.

“The consent decree was signed and the monitor appointed in the spring and summer of 2016, and Newark continues to have the lowest crime in 50 years since then,” said Paul J. Fishman, the former U.S. attorney for New Jersey, who implemented the consent decree.

Sessions is correct in terms of quoting the report's findings. But the findings cannot possibly be correct. Even if the stats are right, the rationale is wrong. Fewer police stops may lead to increased crime, but connecting the two is far from a foregone conclusion. And yet, there it is, in a still-unreleased report that provides ammo for supporters of unconstitutional policing.

Even the authors of the report find it difficult to make this conclusion stick. To do so means throwing out other contradictory evidence, which is exactly what appears to have happened.

Cassell and Fowles called New York City an “anomaly” and wrote that it had a much lower rate of homicides committed with firearms than Chicago, “a small number of guns and gun crimes (relative to Chicago and many other cities),” and a police force that is about 25 percent larger than Chicago’s on a per-capita basis.

The other "anomalies" (Philadelphia, Seattle, Newark, etc.) were ignored. The DOJ itself -- which Sessions heads -- did not arrive at this conclusion either. Its report on increased violence suggests a few factors, none of which are the consent decree governing police stops.

“Over the year-plus since release of that video, and while we have been conducting this investigation, Chicago experienced a surge in shootings and homicides,” the DOJ report says. “The reasons for this spike are broadly debated and inarguably complex. But on two points there is little debate. First, for decades, certain neighborhoods on Chicago’s South and West Sides have been disproportionately ravaged by gun violence. Those same neighborhoods have borne the brunt of the recent surge of violence. And second, for Chicago to find solutions — short- and long-term — for making those neighborhoods safe, it is imperative that the City rebuild trust between CPD and the people it serves, particularly in these communities.”

While Chicago may be grabbing headlines with its high number of homicides, several other US cities have experienced higher spikes in the violent crime rate -- Ft. Worth, Houston, Memphis, and Baltimore have seen far more significant increases than Chicago's. But no one is claiming these spikes are due to ACLU meddling, consent decrees, or the actions of "radicals" opposed to abusive policing. Nope, it's just AG Sessions cherry-picking a single report with anomalous "findings" -- one that refers to data that doesn't agree with its theory as "anomalous." Speaking in front of cops makes it that much easier to peddle bullshit. But that doesn't change the fact it's still bullshit, no matter how much uncritical applause is offered in return.